Firefighters win the Ricci v. DeStefano case

The Supreme Court ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

Click here for a news report on the ruling.
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Information on Ricci, et al. v. DeStefano, et al. case

Interested in accessing Briefs and Documents related to the Ricci, et al. v. DeStefano, et al case? You can find them here.
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ATP Presentation on the Management of Assessment Data

Access the PowerPoint Presentation


Access a Word document listing ethical codes and guidelines relevant to the management of assessment data
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Supreme Court to Hear Ricci v. DeStefano

In what has been described as a reverse discrimination case, the Supreme Court has has agreed to hear what may be a potential landmark case that looks at the role of race in public sector hiring. The case involves firefighters in New Haven, CT who took a promotional exams. While 17 white and 1 Latino firefighter passed the exam, none of the African American candidates did. As a result, the city threw out the results because of adverse impact.

The firefighters subsequently filed suit. One of the core issues to be decided is whether test results can be disregarded solely on the basis of the race of the top scorers without violating the Equal Protection Clause and the prohibition against the use of race-based cut scores. (New Haven has apparently conceded that the exam itself was well-constructed and its validity is not in question.) Tom Sharf's article in the January 2009 SIOP TIP provides a good overview and interesting analysis of the case.

Here is the case before the Supreme Court and one of the earlier rulings.

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New EEOC Compliance Manual on Religious Discrimination

The EEOC recently released a new compliance manual section on religious discrimination in the workplace. This is accompanied by a best practices booklet and a Q&A fact sheet.
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Smoke-Free Hiring Policies

It appears that Escambria County in Florida now includes a drug test to screen for tobacco use in its hiring process.The use of drug testing to ascertain smoke-free status appears to be a growing trend in those states that do not prohibit the use of smoking status as a criterion for hiring. It may prove interesting to monitor public reaction if this trend continues.
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Update on eBay Sales of Protected Test Content

As an update to an earlier post, the Summer 2008 issue of the Test Publisher, the ATP newsletter, has the following:

eBay Removes intellectual property from auction site in response to ATP member complaints

"Six auctions down and a myriad to go," is how ATP's Legislative Counsel Alan Thiemann recently described the ongoing battle with eBay over test materials being sold online.

In response to growing concerns by its members over the presence of copyrighted tests being sold by various Internet sites, ATP has started working with the Software & Information Industry Association (SIIA) to expand the SIIA's existing enforcement for taking down unauthorized sales of copyrighted content.

Thiemann reported that "acting on information obtained from an ATP member, ATP/SIIA contacted eBay and within 24 hours six different auctions had been taken down." He added that, "as often occurs, one of the auctioneers challenged that action." Again working with the publisher, ATP/SIIA provided specific information demonstrating that the test at issue was a copyrighted product used commercially and that the attempted sale was neither licensed nor authorized and therefore was infringement.

Based on this successful "proof of concept" ATP is working with SIIA on how to best move forward in promoting a robust enforcement effort for the handling of piracy involving tests and related materials on the Internet.

"Although the success of the trial run proved promising, rolling out a full-blown, 24/7 enforcement program is going to be a significant undertaking," Thiemann cautioned. He added that as part of efforts so far, a standard email response template has been created which can be used to explain to sellers the legal arguments (copyright/trademark infringement, license agreement violations, etc.) that form the basis of enforcement actions against their auctions.

If any ATP member has an interest in this type of program and the potential savings for your company of joining an Association-lead effort to deal with Internet piracy, ATP would like to hear from you. Please contact ATP CEO Dr. William G. Harris at wgh.atp@att.net.

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Input Needed on "Model Guidelines" Revision

The Model Guidelines for Pre-employment Integrity Testing are in the process of revision. Initial ATP member input is needed by June 15, 2008. The following is from Jack Jones:

To: ATP’s Industrial-Organizational Division Members
From: Jack Jones, Ph.D., Vangent, Inc.
Date: May 13, 2008
RE: “Model Guidelines” Update

I have been appointed by William G Harris, ATP’s Chief Executive Officer, to serve as the Chair of the Model Guidelines Revision Committee. I am being assisted by Dr. David W. Arnold who will serve as the Committee’s Chief Legal Advisor. Dave and I will be selecting a core Task Force to oversee this project, but we intend to provide all ATP Industrial-Organizational Division members the opportunity to participate in this revision process.

As you might know, the “Model Guidelines for Pre-employment Integrity Testing” were last updated in 1996. They were originally published in 1991. My ambitious goal is to have a copy of the revised guidelines ready for release at ATP’s Annual Conference in 2009, if not sooner. The key steps to this project include:

1. Phase 1: Needs Analysis - Surveying ATP members and special external contributors to assess their perspectives on what new sections and topics need to be addressed in the 2009 version of the Model Guidelines based on new types of integrity tests, technologies, market trends, laws, etc. that have evolved over the past decade. (In fact your first assignment, if interested, is to review the attached Model Guidelines and either send me a fax or email that provides your perspective on those topics/areas that need to be addressed in the updated version of the Model Guidelines. Please try to get me this information by June 15th at the latest and then Dave Arnold and I will compile a summary report for your review.)
2. Phase 2: Strategic Focus - The Task Force will focus on the most important topics that need to be addressed in the revised edition of the Model Guidelines. “Importance” will be defined as those business, professional, and legal topics that need to be effectively addressed to ensure the ongoing viability of pre-employment integrity testing as both a science and a practice. The results from the Phase 1 survey will be used to assist in this determination, as will consultations with leading experts in the field of pre-employment integrity testing.
3. Phase 3: Task Force Specialization – The Task Force members will be assigned a key section of the Model Guidelines and will be responsible for updating and revising the targeted section. Dave Arnold and I will then review and compile their work to establish a first draft of the revised guidelines. This draft will then be sent out to all key contributors for their feedback and then a 2nd draft will be quickly prepared.
4. Phase 4: Broader External Review – Special interest groups and associations will then be invited to provide feedback on the revised guidelines and will hopefully provide us with an endorsement along with approval to use their organization’s name in the document.
5. Phase 5: ATP Board Approval – The revised Model Guidelines will be submitted to ATP’s Board for final approval. Any final edits will be made at this time.
6. Phase 6: Marketing and Public Relations – Lauren Scheib will work with the Task Force to prepare press releases announcing both the purpose and the availability of these new guidelines.

I hope you embrace this project and contribute to the Phase 1 effort immediately. Remember we are looking for broader themes and macro-level topics in the Phase 1 survey. We will drill down to specific bullet points once we clearly understand what needs to be added/updated. Both my fax number and my e-mail are listed below. Please include all contact information when send a fax or email. Thanks in advance for your contributions!

Regards -

John W. “Jack” Jones, Ph.D.
Vice President & Chief Scientist
Human Capital Division
Vangent, Inc.
One North Dearborn St., Suite 1600
Chicago, IL 60602
O: 312-242-4422
M: 312-636-6912
F: 312-242-4210

http://www.vangent-hcm.com/
Jack.Jones@Vangent.com

If you are an ATP member and need a copy of the Guidelines, please contact the I-O Division blog.


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In Defense of Validity Generalization...

Since Frank Schmidt and John Hunter published their classic paper in 1977, the concept of validity generalization has become almost universally accepted within the field of I-O psychology. However, there have been reports over the past several months that OFCCP has become increasingly resistant to validity arguments based upon meta-analytic validity generalization and has suggested that local validation studies be carried out when cognitive ability tests are used. In part, OFCCP's concerns seem to center around the fact that the notion of meta-analytic validity generalization does not appear in the Uniform Guidelines, which were drafted in 1978.

In an attempt to make the ATP membership and others in the I-O community aware of this issue, Jim Sharf of Employment Risk Advisors was kind enough to share two documents. The first is a letter that Jim wrote to the EEOC where he argues that the sections of the Uniform Guidelines which address "situational specificity" and "single group validity" are obsolete. The second is an open letter to OFCCP authored by David Copus, a well-known employment law attorney, who provides a very extensive review of the history of validity generalization and argues how the reliance of the Uniform Guidelines on the concept of "situational specificity" is dated and renders them inconsistent with current thinking in the field.
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EEOC Uniform Guidelines to Stay As Is

The EEOC has opted to leave the Uniform Guidelines as they currently are for at least the next three years. Specifically, the EEOC gave notice of its "intent to submit the Uniform Guidelines on Employee Selection Procedures (UGESP or Uniform Guidelines) without change, to the Office of Management and Budget (OMB) for a three-year approval under the Paperwork Reduction Act of 1995 (PRA)."

Additionally, the EEOC is not going to provide additional on the questions which were outlined in 2004 in relation to the definition of an "applicant." Specifically,

EEOC does not intend to finalize the five additional Questions and Answers that include clarification of the definition of ‘‘applicant.’’ However, employers still must ensure that they are complying with the requirements of UGESP.

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EEOC Proposed Rulemaking on ADEA

In an update courtesy of David Arnold, ATP General Counsel, the Equal Employment Opportunity Commission (EEOC) has issued a notice of proposed rulemaking to address issues related to the United States Supreme Court's decision in Smith v. City of Jackson. The Court ruled that disparate impact claims are cognizable under the Age Discrimination in Employment Act (ADEA) but that liability is precluded when the impact is attributable to a reasonable factor other than age. Current EEOC regulations interpret the ADEA as prohibiting an employment practice that has a disparate impact on individuals within the protected age group unless it is justified as a business necessity. EEOC is proposing a change in rules to accommodate this Court ruling.
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EEOC Announces Settlement with Ford

Ford Motor Co., along with two related companies and a national union, will pay $1.6 million and provide other remedial relief to a class of nearly 700 African Americans to settle a race discrimination lawsuit brought by the EEOC. The EEOC had charged that the written test used by Ford, Visteon and Automotive Components Holdings (ACH) to select employees an apprenticeship program had a disproportionately negative impact on African Americans.
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